ECHR as the next battleground for the rights of women and children

[Ingenieur]

I have started this thread to avoid derailing a previous one.

Original thread:

https://www.mumsnet.com/talk/womens_rights/4852476-tougher-transgender-guidance-for-schools-is-unlawful-sunak-told?page=1

It was suggested there that the ECHR would be an impediment to rescinding or fundamentally changing the GRA or the gender reassignment parts of the Equality Act. This is on the basis that membership of the European Convention on Human Rights would not permit the unwinding of existing rights, even if it does not force member nations to comply.

I know most of us do not practise law, and even fewer are international or constitutional lawyers, but I'd like to understand more of the nuance surrounding this aspect of our fight.

As a starter for 10, is this even true? Is leaving the ECHR the only solition to unwinding these laws?

Also, looking at the ECHR summary of the Goodwin case, it states the following:

Since there [we]re no significant factors of public interest to weigh against the interest of this individual applicant in obtaining legal recognition of her gender re-assignment, the Court reache[d] the conclusion that the notion of fair balance inherent in the Convention now tilt[ed] decisively in favour of the applicant.

It is astonishing that a case which overturned a number of previous ECHR Article 8 and Article 12 cases was judged on the basis of public interest, and that no public interest was noted.

Seems like a bit of a mess.

Those who claimed (falsely as was shown by the overwhelming vote against them in both Houses of Parliament, given that the Sovereign-in-Parliament is, well, sovereign) there would be breaches of other peoples human rights

I'm honestly speechless at this.

All we have to do to prove the veracity of, well, anything, is to get parliament to vote that it is so.

That person is an idiot. That quote just shows they literally believe it will never happen so imagine barbie kardashian, Karen White and isla bryson were all fitments of our imagination as that debate was decisively lost 😂

I know @Boomboom22.

At the beginning of this thread I thought they might have something interesting and useful to contribute, but it soon became apparent that they were just here to derail and kill the thread. And they seem to have succeeded, which is a shame, because I think it really is time to seriously discuss repeal of the GRA.

Didn't Spero have a group organised to discuss that a year or so ago?

I've been reading about a different case where the UK apparently was acting unlawfully / in breach of human rights - the right of prisoners to vote.

https://www.bbc.co.uk/news/uk-42271100 and the various related articles for quick background

Apparently having a blanket ban on prisoners voting was a violation.

Firstly, we didn't do anything about it for years apparently and nothing bad really happened as far as I can tell. So the grey rock strategy isn't off the table, especially for something like this where I suspect just waiting for the popular craze to end may make it go away.

Secondly, when we finally addressed it after multiple court judgments, we did the absolute bare minimum and gave voting rights to only about 100 prisoners who were serving trivially short sentences. But, importantly, this was seen as okay by the court, because all they wanted was that we didn't have a blanket ban.

My point is the one made earlier in this discussion - let's not get distracted by the "headline" claim ("ECHR forces UK to give prisoners the vote" / "ECHR forces UK to let trans people change legal sex") and let's work out what the actual, much narrower requirement actually is.

My hypothesis is that the actual requirement is to have a process for registering gender identity legally, but there is no actual requirement for that to be in the sex field if a state wishes to store that information separately.

I can only reiterate

https://www.mumsnet.com/talk/womens_rights/4854756-echr-as-the-next-battleground-for-the-rights-of-women-and-children?reply=127943674&utm_campaign=thread&utm_medium=share

"ECHR as the next battleground for the rights of women and children

Ingenieur · 22/07/2023 10:59

I have started this thread to avoid derailing a previous one.

Original thread:

^www.mumsnet.com/talk/womens_rights/4852476-tougher-transgender-guidance-for-schools-is-unlawful-sunak-told?page=1^

It was suggested there that the ECHR would be an impediment to rescinding or fundamentally changing the GRA or the gender reassignment parts of the Equality Act. This is on the basis that membership of the European Convention on Human Rights would not permit the unwinding of existing rights, even if it does not force member nations to comply.

I know most of us do not practise law, and even fewer are international or constitutional lawyers, but I'd like to understand more of the nuance surrounding this aspect of our fight.

As a starter for 10, is this even true? Is leaving the ECHR the only solition[sic] to unwinding these laws?

Also, looking at the ECHR summary of the Goodwin case, it states the following:

Since there [we]re no significant factors of public interest to weigh against the interest of this individual applicant in obtaining legal recognition of her gender re-assignment, the Court reache[d] the conclusion that the notion of fair balance inherent in the Convention now tilt[ed] decisively in favour of the applicant.

It is astonishing that a case which overturned a number of previous ECHR Article 8 and Article 12 cases was judged on the basis of public interest, and that no public interest was noted.

Seems like a bit of a mess."

Could you show me where my posts (excluding those having to deal with personal attacks against me because apparently there's a few posters on here who don't quite get that schoolyard tactics don't work on those of us who left the schoolyard quite some time ago) don't meet the purpose of this thread as expressed by the OP?

‣ ECHR? Check
‣ The possibility of leaving it? Check
‣ The consequences of leaving it? Check
‣ The human rights law aspects of both the ECHR and GRA? Check
‣ Where human rights law has continued to evolve past Goodwin under the Convention? Check

"Secondly, when we finally addressed it after multiple court judgments, we did the absolute bare minimum and gave voting rights to only about 100 prisoners who were serving trivially short sentences. But, importantly, this was seen as okay by the court, because all they wanted was that we didn't have a blanket ban."

Yes. That was the point of the ECHR ruling. A blanket ban was a breach of human rights. Changing it to a system where the blanket ban no longer existed was enough to discharge the duty the member state had to meet the relief required by the ruling

"My hypothesis is that the actual requirement is to have a process for registering gender identity legally, but there is no actual requirement for that to be in the sex field if a state wishes to store that information separately."

Your hypothesis is incorrect. Goodwin was built on multiple planks, one of them being that preceding case law (resulting in statutory law being passed) was that discrimination against a trans person on the basis that they were, or had been transitioning was an act of sex discrimination. Because Goodwin was built on that plank, and other planks recognise sex as a matter of identity and information, and that the UK government used the older term 'sex identity' from preceding ECHR case law, and the ECHR used 'gender identity' from newer case law, and all of it was a definition of the same thing (sex in law). It doesn't matter what you choose to call your new fields, if they don't meet the criteria of being sex as recognised in law then the Article 8 requirement to allow for a change of sex to be recognised by a quick and transparent process remains for the information gathered by the state for that individual remains applicable to the piece of information used by the state to determine what somebody's sex is for the purposes of the law. Ordo Iuris tried a similar tack to your argument in their submission to the ECHR and the ECHR slapped it down as having no credence

I was just going to reply to Lockee's post telling us that the law is the absolute truth, but I see it's been deleted. I thought that particular gem was hilarious, but the rest the post was pretty offensive, so I can understand why it was reported.

The amount of bulshit necessary to shore up this nonsense is extraordinary.

I'm sorry I missed it 😁

I have been away from the Web for a few days until this morning and it has taken me a long time to catch up with this thread. My forced absence has given me the opportunity to give the subject a bit of thought. It struck me that it is a pity that @LowKeyLookee has managed to put so many others backs up because I think that she suggested a potential way out of the maze on Monday which was shot down in flames without being explored.

Lookee suggested that if sex ceased to be captured on a birth certificate then the GRA could be repealed without breaching the ECHR. This was rejected because 'sex matters' and a couple of attempts to revive it were similarly rebuffed. I would like to have another go at the idea and see if it could be made to work.

Biological sex is noted at birth and recorded on the baby's medical record. This cannot be changed as it is essential for sex-based future treatment. It can only be accessed by medical staff with a legitimate requirement. I don't think that this would breach Article 8. The sex is not recorded on the birth certificate. All passports are issued with an X as the sex marker.

These changes should be sufficient to be able to repeal the GRA while not breaching Article 8 of the ECHR but will potentially create problems where sex does matter. I don't think that these problems are insurmountable. I'll have a go and I'm happy to be told what I have missed.

The only place that I can think of where the sex marker on a birth certificate is used is when you apply for a passport and setting the sex marker as X on every passport eliminates this. You don't produce a child's certificate to register them for education. I didn't even need it when DD went to a single-sex secondary school. Universities don't ask for it. Employers ask for it but only as proof of the right to work in the UK. You need a birth certificate to get married but the sex marker is irrelevant. The same with a driving license. No sex-based data is predicated on seeing the sex marker on a birth certificate as far as I can see. I'm happy to be corrected and we can think about workarounds if I'm wrong.

So, what about our sex-based rights? I think that abolishing the GRA presents a golden opportunity as that would mean that the EqA has to be amended as gender reassignment would no longer exist as a meaningful term. Separately from addressing sex-based rights, I suggest that the protected characteristic of gender reassignment is replaced with unconventional gender presentation. As always, I would appreciate constructive criticism and alternative suggestions.

Which brings me, finally, to the all-important sex-based rights. These rights all sit on the EqA protected characteristic of sex. Once we have opened the EqA we can sort this out properly.

Sex should be defined as biological sex. The EqA should formalise what happens IRL for most day-to-day situations, i.e. sex is determined by external physiological conditions such as height, proportions, gait and voice. The diminishingly small number of people whose physiology doesn't conform to their biological sex could obtain a certificate of biological sex from their doctor using the biological sex marker on their medical record. This could also be used for the 6,000 holders of a GRC.

This is important as the single sex exceptions should become the default and I would hate to deny a biological woman access to a single sex space or service because she seriously looks and sounds like a man.

By single sex spaces and services being the default, I mean exactly that. All government provided services such as prisons and hospital wards will be single biological sex. If you request intimate care from a person of the same sex, that is what you get.

Other services and spaces that you might assume to be single sex will be required to be accurately identified. If you put a 'Ladies' sign on a toilet or changing room then it is a single biological sex toilet or changing room. If you advertise a Women's Swimming Session then it is for biological women only. A women's crisis centre is only for biological women and so on. Any facility or service that isn't being provided on a single sex basis cannot be described as single sex.

Schools will operate on the basis that children are the biological sex that was declared when the child first entered the school system unless it becomes clear that the original identity was inaccurate.

Please feel free to tell why this cannot work or what gaping holes I have left in it.

I admit that it may seem somewhat Draconian but I'm putting it forward as the basis for fixing a very tangible problem. Wear what you want, call yourself whatever you want, you shouldn't be discriminated against but you shouldn't try to access single sex spaces and services that are intended for the opposite sex.

Oh my, the board famous for its free speech values deleting a post that contains within it no illegality? Can only be because it was reported. Which is strange because I haven't reported a single post from any person trying to insult me. It makes me think, it really does 🤔

I assume it was deleted because of your offensive comment that was directed at me. I didn’t report it and I'd have preferred it to stand as I particularly enjoyed your explanation of how laws create the truth. Perhaps you'd like to repost that bit. Other posters, like @Middlelanehogger would like to see it.

@JanesLittleGirl

There are a few threads about a research project a few years ago which had the hypothesis you are proposing, that the state should not need to certify sex.

I will see if I can find the threads.

@JanesLittleGirl

See this posts for some links to threads where removing the legal category of sex was discussed.

https://www.mumsnet.com/talk/womens_rights/4854756-echr-as-the-next-battleground-for-the-rights-of-women-and-children?page=3&reply=127886213

The thread was called

The future of legal gender

I can't link it as it switches me to the app which doesn't work on my device.

Lookee suggested that if sex ceased to be captured on a birth certificate then the GRA could be repealed without breaching the ECHR. This was rejected because 'sex matters' and a couple of attempts to revive it were similarly rebuffed. I would like to have another go at the idea and see if it could be made to work.

The goal of the decertification project was not to facilitate the equality act exceptions, it was to make them impossible to use, even more so than now. It was strongly opposed.

If you Google the future of legal gender I think the project will still come up.

And given that sex on a passport is pretty much a matter of self-ID these days (if somebody doesn't want it matching their birth certificate they can just get a doctor's note requesting that and let's face it, how hard is that?), passports wouldn't even need to have an 'X' marker on them

As for sex being placed into law as "biological sex"? Immediately undoes the point of not recording sex. As soon as a clearly defined boundary definition of sex is made in law it becomes information of a private individual as determined by the state and Article 8 once more applies. As I've mentioned elsewhere in a reply, ethnicity isn't recorded on a birth certificate, nor is it defined with rigid margins within the law. Even the Equality Act limits its description to, "(a) colour; (b) nationality; (c) ethnic or national origins". In all honesty there's no reason not to do the same with sex. If it comes down to a legal matter, leave it to the courts and tribunals to decide based on each case in front of them, if it's relevant. If it's a medical matter then it's already recorded in medical notes. If it's for the determination of the allocation of resources by the state then that's already done through the census. RSA crisis centres and refuges already have their own measures in place. Why rigidly define something when it's known that the moment that happens Article 8 rights immediately apply to it?

I should also note in regards to the rest of your post; there's a reason why the Equality Act 2010 is written the way it is and that's because it's mostly a drawing together of previous (heavily) amended pieces of statutory law which were amended because of legal rulings whose precedent are required, even now, to still be incorporated into statutory law. As I've also mentioned, one of the planks of the Goodwin ruling is that it was previously ruled in a matter of precedent which then became statutory law that discrimination against somebody because they're trans is a matter of sex discrimination. So matters of sex discrimination are required to take that precedent into account in how sex discrimination law is to operate and of course, even if the protected characteristic of "gender reassignment" was removed, it would then automatically fall under any existing protections against sex discrimination. Provide a rigid definition of sex in law and Article 8 applies and now without a separate gender reassignment protected characteristic precedent requires all trans people to be placed into a sex designation of their own choosing for the purposes of the law (this arises as a result of the precedent determining that gender reassignment discrimination is sex discrimination pre-dating Goodwin, and occurred at a time when there was no 'gender reassignment' protected characteristic and so it became part of 'sex' as a category)

And that's before we get into the new breaches of Article 8 rights you've proposed to have. Requiring somebody to produce (presumably whenever demanded) confidential medical information to whoever demands to see it to gain access to something that a person not in their situation is not required to provide is a straight breach of the Article 8 right to privacy as well as an Article 14 breach. Requiring everybody to carry certification from their doctors that says what their biological sex is would a) crash the NHS, b) provide no protections against doctors who would have happily write down anything if enough money was provided, and c) would still violate the Article 8 rights to privacy because the state cannot demand that its citizens reveal confidential medical information about themselves just to access day-to-day aspects of life

That's just off the top of my head. At a guess there's likely a whole load of other issues as well

tl;dr:

i) Any clearly defined definition of sex in law passed by the state is for the purposes of Article 8 of the Convention a matter of information about a private individual and falls within that individual's autonomous human right to define and have recognised by the state

ii) Precedent preceding Goodwin means that removing the protected characteristic of "gender reassignment" immediately means that protection against discrimination for trans people falls under sex discrimination and where precedent has also determined that a trans person is to be treated as their self-determined sex

iii) Forcing some people to divulge confidential medical information to access services that others access without divulging confidential medical information based on them being trans (sex discrimination given that you wish gender reassignment discrimination to be removed), or intersex, or otherwise having a DSD, is a straightforward Article 8 right to privacy coupled with an Article 14 breach of the right not to be discriminated against because of Article rights being breached

iv) Forcing everybody to divulge confidential medical information about themselves to access day-to-day aspects of life is a straightforward breach of the Article 8 right to privacy

Was my "offensive comment" apologising to you? That is the only thing that comes to mind, tbh

If people are suggesting sex is fixed and underpins what is segregated then fine

@OldCrone @Hepwo Thanks for the links and resources. I'll have a read.

@LowKeyLockee Thanks for the detailed response. I'll work through it and see if I can fill in the holes.

The argument I have against decertification of sex is equal pay law. Lawyers only look at that from the perspective of claims, not from the point of view of employers managing pay equality.

How do you conduct an equal pay audit with only a voluntary approach to the data?

You can't. In the same way you can't conduct an ethnicity pay audit currently as voluntary participation is low. The highest paid have a good reason not to participate. The highest paid men also have a reason not to participate if equal pay audits are based on voluntary participation.

Some clear bright lines for me:

• Biological sex needs to be recorded by the state, if for no other reason than the NHS needs it. I don't think there's a get-out-of-jail-free card where the state simply has no record of sex ever

• This field needs to be based in biological, material reality and only changeable if there was a clerical error in the original recording

• State-run single-sex spaces (e.g. prisons, hospitals) should be on the basis of biological sex. Private providers should also legally be allowed to run single-sex services as per the EqA exemptions. GRCs should not influence this process

• Biological sex should be discoverable in DBS checks and similar

• Government ID should say your actual sex. I don't mind if there is the option to give an X if you don't like seeing the M on there every day (but don't be surprised when the female-only spa doesn't let you in). The government should not be in the business of lying

Things I'm okay with

• Vanity GRCs. I think there shouldn't be any kind of checks on them e.g. must be post-op - this only makes the wider public think they're somehow legitimate. They should be irrelevant for all the purposes above

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Now, as to how to get that done. Does anyone know how to stack the ECtHR...? 🤔